Martin Marietta Corp. v. Glumb, 87-106

• Decision Date: 25 March 1988
• Docket Number: No. 87-106,87-106
• Parties: 13 Fla. L. Weekly 771 MARTIN MARIETTA CORPORATION and Scott Wetzel Services, Appellants, v. Robert GLUMB, Appellee.
• Court: Florida District Court of Appeals

Page 1190

523 So.2d 1190

13 Fla. L. Weekly 771

MARTIN MARIETTA CORPORATION and Scott Wetzel Services, Appellants, v. Robert GLUMB, Appellee.

No. 87-106.

District Court of Appeal of Florida,

First District.

March 25, 1988.

Bernard J. Zimmerman and Mathew D. Staver of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellants.

J. David Parrish of Hurt & Parrish, P.A., Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.

JOANOS, Judge.

Martin Marietta Corporation and Scott Wetzel Services (E/C) appeal a workers' compensation order granting payment of medical bills, temporary total disability (TTD) and temporary partial disability (TPD) benefits, and attorney's fees. The E/C present four issues for our review: (1) whether there is competent substantial evidence to establish a causal relationship between chemical exposure at the work place and the chest pain and shortness of breath experienced by claimant Robert Glumb, (2) whether there is competent substantial evidence to support an award of payment of medical bills, (3) whether the deputy commissioner erred as a matter of law in awarding an attorney's fee of $30,000, and (4) whether the deputy commissioner erred as a matter of law in awarding costs, TTD, and TPD benefits. We affirm the order appealed, but remand for presentation of proper proof of the amounts of the medical bills.

Claimant began working for Martin Marietta in August 1981. A pre-employment physical performed at that time indicated that claimant had no significant health problems. In March 1982, after a training period, claimant was transferred to the ablative bonding area, where he operated machines that cut heat shields. The overall ablative area covers approximately 1600 square feet, and houses fifteen or sixteen machines. In 1984, the 70 X 30 foot bonding area was completely enclosed. During his employment with Martin Marietta, claimant was exposed to the dust and fumes incident to machine cutting of the heat shields, as well as to the chemicals trichloroethylene, cotton phenolics, silica phenolics, silica dust, epoxy mixes, and toluene. The ventilation systems which served the ablative area were shut down from time to time, and the bonding area did not have a separate filter system during the time that claimant worked there.

In mid 1985, claimant began to experience breathing difficulties. Any physical exertion left him breathless and with a sense of tightness in the chest area. In addition, claimant suffered abdominal pain and blood in his stool. On October 13, 1985, claimant suffered from chest pains contemporaneously with the feelings of breathlessness and tightness in his chest. He was taken to Orlando Regional Medical Center, where a catherization was performed on October 16, 1985. According to Dr. Partain, cardiologist, the coronary arteriogram was almost entirely normal, and there was no evidence of a prior myocardial infarction. Dr. Partain's final diagnosis was acute chest pain, non-cardiac in nature, of uncertain causes. Dr. Partain stated that certain toxic chemicals can cause cardiomyopathy, however, in claimant's case he found no medical or cardiology problem that he would relate to exposure at Martin Marietta.

Upon his release from the hospital, claimant's chest pains were gone and he returned to work. When he had been back at work less than a month, he experienced the same shortness of breath and chest pain. Claimant then consulted Dr. Myint, a specialist in occupational medicine and toxicology. Dr. Myint performed a pulmonary function study, which he compared to prior pulmonary function studies which had been performed on claimant in 1981 and 1982. The comparison showed a significant decline in function, which Dr. Myint attributed to chemical irritants caused by industrial solvents. In addition, Dr. Myint performed chest x-rays and blood tests. Dr. Myint diagnosed claimant's condition as chest pain due to coronary vasospasm caused by industrial solvents, and stated that within a reasonable degree of medical certainty, claimant's condition was causally related to his exposure to chemicals at Martin Marietta.

Claimant was also treated by Dr. Nimmagadda in 1986. Dr. Nimmagadda diagnosed claimant's condition as ischemic heart disease, but concluded he could not prove or disprove a causal relationship between claimant's condition and his job. Although he was unable to establish a causal relationship, the doctor said there was no objective evidence of significant coronary artery disease to explain claimant's angina, therefore, it had to be explained on a non-organic basis, which could include stress, exposure to chemicals, and small vessel disease.

In March 1986, claimant was seen by Dr. Alexiou, on a referral from Martin Marietta's Occupational Health Department. Dr. Alexiou obtained Material Data Safety Sheets, which indicated the chemicals claimant was exposed to at work. He diagnosed claimant's condition as reaction to exposure due to chemical sensitivity to the workplace environment and the chemicals in that environment. In Dr. Alexiou's opinion, the cause was a combination of chemicals or a synergistic effect, with trichloroethylene as the primary offending chemical. Dr. Alexiou, like Dr. Myint, found that claimant suffered from a work-related industrial exposure.

Mr. Kwon, psychologist and industrial hygienist, testified on behalf of the E/C. Mr. Kwon stated that the chemicals claimant was exposed to did not cause the symptoms claimant presented. On cross examination, however, Mr. Kwon acknowledged that in animals trichloroethylene can cause neuromuscular reflex changes, sudden death, respiratory failure, lung irritation, cardiac arrest, liver dysfunction, and staggered gait.

Dr. Dixon, specialist in the field of occupational health and toxicology, testified unequivocally that petrochloroethane, acetone, and toluene cannot cause the symptoms that claimant presented. On cross examination, Dr. Dixon admitted that the Material Safety Data Sheets expressly stated that trichloroethylene can have harmful effects on the central nervous system, liver, or heart, and that phenol itself can be an irritant. However, Dr. Dixon discounted the warnings contained on the sheets, on the ground that Safety Material Data Sheets are unreliable.

In addition to the extensive medical evidence presented in this case, the deputy heard testimony from other Martin Marietta employees who were working or had formerly worked in the ablative area. These employees all suffered physical complaints similar to those experienced by claimant. Seven of the lay witnesses belong to the same union as claimant, and one of the witnesses is a non-union administrator. This witness stated that he had been transferred to an administrative post due to a heart condition and other medical problems. He said he had been exposed to toxic chemicals for more than a year and suspected that exposure caused his problems.

The deputy also received the testimony of an industrial hygienist who worked at Martin Marietta from August 1981 through June 14, 1985. This witness was not accepted as an expert, but her lay testimony was considered by the deputy commissioner with respect to the ablative bonding area during the time of her employment. This witness established that there had been numerous employee complaints of headaches, nausea, lightheadedness, and fatigue related to the ablative area. She stated that after 1982, there was increased production with additional machines being operated in the ablative area, but there was a delay in updating the ventilation system to accommodate the additional machines.

On April 10, 1986, claimant was released by Martin Marietta. Dr. Nimmagadda advised claimant that he was unable to work around chemicals, and Martin Marietta had no other employment for him.

In a detailed order entered April 13, 1987, the deputy commissioner found that claimant sustained a compensable injury on October 13, 1985, and on April 10, 1986, the date of the last injurious exposure. The deputy commissioner further found that claimant had not reached maximum medical improvement, and that he was entitled to TTD benefits from April 10, 1986, to October 13, 1986, and TPD benefits from October 24, 1986, and continuing so long as he remained TPD. The deputy commissioner based this finding on the fact that Dr. Nimmagadda stated unequivocally that claimant should not work at Martin Marietta, and that the forms completed by Dr. Nimmagadda dated May 7, 1986, July 16, 1986, and September 8, 1986, indicated that claimant was unable to work and was house-confined from April 10, 1986, for an indefinite period of time. Finding that the E/C had not furnished necessary forms for filing for TPD benefits, the deputy commissioner excused claimant's lack of a job search subsequent to October 23, 1986. The E/C were directed to pay for medical care incurred subsequent to October 13, 1985, the medical bills of Dr. Nimmagadda and Dr. Myint, costs, and attorney's fees.

To establish a work-related injury under an exposure theory, a claimant must demonstrate:

(1) that he has had a prolonged exposure;

(2) a causal relationship between the exposure and the injury or aggravation; and

(3) that he has been subject to a hazard greater than that to which the general public is exposed.

City of Miami v. Tomberlin, 492 So.2d 433 (Fla. 1st DCA 1986); Dean Jaye Construction v. Johnson, 486 So.2d 664 (Fla. 1st DCA), review denied, 494 So.2d 1150 (Fla.1986); Brevard County Mental Health Center v. Kelly, 420 So.2d 911 (Fla. 1st DCA 1982); Lake v. Irwin Yacht & Marine Corporation, 398 So.2d 902 (Fla. 1st DCA 1981); Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA), pet. for review denied, 388 So.2d 1119 (Fla.1980).

Under either an exposure theory or an occupational theory, a claimant must show a causal relationship between the injury and the employment. Lake v. Irwin Yacht & Marine, 398 So.2d at 904. In Harris v....